03/14/2019

Eric Segall on Unenumerated RightsMichael Ramsey

Next week I have the privilege of participating in a symposium at the University of Nevada at Las Vegas on substantive due process. I plan to use my time to argue that the Court should not only repudiate that anti-textual, anti-historical doctrine, but also suggest the Court should not use either the Ninth Amendment or the Privileges or Immunities Clause as its substitutes. The costs of the Justices enforcing their personal views on natural law, morality, or call it whatever you want, are just too great, especially when it looks like we will for the near future need the Court to save its prestige and energies for difficult and urgent separation of powers problems. I will briefly sketch out my general arguments here, and eventually write a much more detailed article on the subject.

There are legalist arguments against using any of the three constitutional provisions above as a font of judicially invented fundamental rights (other than those listed in the Constitution). These arguments are not my main reasons for rejecting a fundamental rights doctrine because being a legal realist I understand that judges and scholars can manipulate formalist arguments. But I mention them for those who think legal doctrine matters to the Justices.

Some scholars and judges believe that "substantive due process" is a textual oxymoron. As Professor John Hart Ely said a long time ago, it is “a contradiction in terms—sort of like ‘green pastel redness.’” Professor Jamal Green vigorously disputes this characterization arguing among other things that there are some deprivations that cannot be justified by any process, and therefore the phrase must have substantive content. Nevertheless, the text seems to suggest procedural protections either mostly or exclusively.

Although some folks have tried to make an originalist case for the doctrine, Professors Michael McConnell and Nathan Chapman have exhaustively researched the subject and concluded that "contrary to the claims of some scholars, however there was virtually no precedent before the Fourteenth Amendment that restricted liberty or the use of property. Contemporary resorts to originalism to support modern substantive due process doctrines are therefore misplaced." There are likely non-frivolous historical arguments against this view, but the analysis by these two scholars is more than sufficient to justify a formalist veto on judges or scholars suggesting originalism justifies using substantive due process to protect non-textual, fundamental rights.

But his more central point:

So I can easily defend my position against judicial creation of fundamental rights on formalist grounds alone, but such arguments rarely convince anyone. My more persuasive arguments rest on policy.

When the Court has articulated fundamental rights not listed in the Constitution, it has miserably failed and almost always bad consequences have followed the Court's inventions...

A bold view for someone on a left-of-center site (and he gets some pushback in the comments).